Employers take note

No ac­tion over em­ployee dis­cord could land you in court, li­able for in­juries

Sunshine Coast Daily - - YOUR SAY -

EMPLOYERS be­ware – you could be held li­able for in­juries suf­fered if em­ploy­ees get into a scrap at your work­place.

That’s the out­come of a claim af­fect­ing a Gold Coast busi­ness and Bris­bane in­jury com­pen­sa­tion law spe­cial­ist Trent John­son says all employers should take note af­ter the em­ployer was found li­able for in­juries suf­fered by one of its em­ploy­ees in the work­place when a co-worker as­saulted him.

A sim­mer­ing row be­tween two work­ers work­ing phys­i­cally close to­gether at the Top Cut Foods food pro­cess­ing plant at Burleigh Heads caused ten­sions which led to an as­sault by one worker on the other.

Trent John­son, an ac­cred­ited spe­cial­ist in per­sonal in­jury law and a di­rec­tor with Bris­bane firm Ben­nett & Philp Lawyers, says the biff found its way to the South­port District Court for de­ter­mi­na­tion be­fore His Hon­our Judge Kent QC.

“Cen­tral to the claim was the em­ployer’s state of knowl­edge as to the po­ten­tial risk of in­jury to the em­ployee as­saulted by the other worker. The worker re­spon­si­ble for the as­sault had a crim­i­nal his­tory for vi­o­lence and had ear­lier been dis­missed from the em­ployer fol­low­ing a ver­bal ar­gu­ment,” Mr John­son says.

“When the man was re-em­ployed by the em­ployer, he was asked by a su­per­vi­sor who was aware of the pre­vi­ous in­ci­dent if he had changed. He re­sponded that he was more aware of his ‘trig­gers’. “So it comes down to the is­sue of the em­ployer’s knowl­edge of the po­ten­tial risk of in­jury to its work­ers from the re-em­ployed worker.”

The les­son from the case is one worth shar­ing among all employers be­cause it shows an em­ployer can’t nec­es­sar­ily ig­nore sim­mer­ing ten­sions in the work­place.

The in­jured worker cited sev­eral events that placed his em­ployer on no­tice of a risk of him suf­fer­ing in­jury from the other worker.

“In the few months lead­ing up to the as­sault the in­jured worker had raised con­cerns about his co-worker’s be­hav­iour to his su­per­vi­sor, a com­plaint had been made to the su­per­vi­sor by the co-worker about the in­jured worker and the su­per­vi­sor had wit­nessed the co-worker loudly abus­ing the in­jured worker on the day of the as­sault,” Mr John­son says.

Things came to a head in Jan­uary 2014 when one of the work­ers was punched to the back of the head and to the face un­til two co-work­ers phys­i­cally re­strained the at­tacker, who also hit one of the in­ter­ven­ing co-work­ers.

“In court the judge high­lighted the duty of care owed by an em­ployer to an em­ployee, in­di­cat­ing that the duty may ex­tend to pro­tect­ing the em­ployee from crim­i­nal be­hav­iour of third par­ties, in­clud­ing fel­low em­ploy­ees,” Mr John­son says.

“So should the em­ployer have been aware of a fore­see­able risk, and taken ac­tion to pre­vent the con­fronta­tion be­fore it hap­pened? Two sig­nif­i­cant points here noted by the judge point to the em­ployer be­ing on no­tice of the as­sault­ing worker’s prior crim­i­nal his­tory and knowl­edge that he had mis­be­haved at work pre­vi­ously.

The em­ployer was found to have failed to pro­vide train­ing to their su­per­vi­sor in per­son­nel man­age­ment or de-es­ca­lat­ing con­flicts be­tween em­ploy­ees.

Tak­ing all of the ev­i­dence in con­sid­er­a­tion His Hon­our found the em­ployer could have moved the two men away from one an­other and had this been done, the as­sault would likely not have hap­pened.

This and other fac­tors meant the as­sault was fore­see­able so the em­ployer was neg­li­gent in not tak­ing ac­tion be­fore­hand.

The em­ployer was found to have breached its duty of care to the in­jured worker and the breach was con­sid­ered causative of his in­juries be­cause it ma­te­ri­ally in­creased the risk of him suf­fer­ing the in­jury which even­tu­ated.

In the event the in­jured worker’s dam­ages were as­sessed at $584,995.09. Mr John­son says the very clear les­son to all employers from this case is the ex­tent to which employers can be found li­able if they fail to take prompt ac­tion over em­ployee dis­cord.

Photo: Wave­break­me­dia Ltd

DUTY OF CARE: Employers could be held li­able for in­juries suf­fered if em­ploy­ees get into a scrap.

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